Monday, September 10, 2007

Definition of crime in general The process of criminalization is controlled by the State because: Criminalization might be intended as a pre-emptive, harm-reduction device, using the threat of punishment as a deterrent to those proposing to engage in the behavior causing harm. The State becomes involved because they usually believe costs of not criminalizing (i.e. allowing the harms to continue unabated) outweigh the costs of criminalizing it (i.e. restricting individual liberty in order to minimize harm to others). Criminalization may provide future harm reduction even after a crime, assuming those incarcerated for committing crimes are more likely to cause harm in the future. Criminalization might be intended as a way to make potential criminals pay for their crimes. In this case, criminalization is a way to set the price that one must pay (to society) for certain actions that are considered detrimental to society as a whole. In this sense criminalization can be viewed as nothing more than State-sanctioned revenge. Even if the victims recognize that they are victims, they may not have the resources to investigate and seek legal redress for the injuries suffered: the enforcers formally appointed by the State have the expertise and the resources. The victims may only want compensation for the injuries suffered, while being indifferent to a possible desire for deterrence: see Polinsky & Shavell (1997) on the fundamental divergence between the private and the social motivation for using the legal system. Victims or witnesses of crimes might be deterred from taking any action if they fear retaliation. Even in policed societies, fear may inhibit reporting or co-operation in a trial. Victims do not have economies of scale to administer a penal system, let alone collect any fines levied by a court (see Polinsky (1980) on the enforcement of fines). Garoupa & Klerman (2002) warn that a rent-seeking government's primary motivation is to maximize revenue and so, if offenders have sufficient wealth, a rent-seeking government is more aggressive than a social-welfare-maximizing government in enforcing laws against minor crimes (usually with a fixed penalty such as parking and routine traffic violations), but more lax in enforcing laws against major crimes. The victims may be incapacitated or dead as a result of the crime. Why criminalize? The first civilizations had codes of law, containing both civil and penal rules mixed together, though these codes were not always recorded. According to Oppenheim (1964), the first known written codes were produced by the Sumerians, and it is known that the king Urukagina had an early code that does not survive. A later king, Ur-Nammu left the earliest code that has been discovered, creating a formal system in 57 articles, the Code of Ur-Nammu. The Sumerians later issued other codes including the "code of Lipit-Istar" (last king of the 3rd dynasty of Ur, Isin - 20th century BCE). This code contains some fifty articles and has been reconstructed by the comparison among several sources. As Kramer (1971: 4) states: "The Sumerian was deeply conscious of his personal rights and resented any encroachment on them, whether by his King, his superior, or his equal. No wonder that the Sumerians were the first to compile laws and law codes." In Babylon, Driver and Mills (1952-55) and Skaist (1994) describe the successive legal codes, including the code of Hammurabi (one of the richest of ancient times), which reflected society's belief that law was derived from the will of the gods (see Babylonian law). Many of the States at this time were theocratic, and their codes of conduct were religious in origin or reference.Sir Henry Maine (1861) studied the ancient codes and failed to find any criminal law in the modern sense of the word. While modern systems distinguish between offences against the "State" or "Community", and offences against the "Individual", what was termed the penal law of ancient communities was not the law of "Crimes" (crimina); it was the law of "Wrongs" (delicta). Thus, the Hellenic laws (see Gagarin: 1986; and Garner: 1987) treated all forms of theft, assault, rape, and murder as private wrongs, and action for enforcement was up to the victim or their survivors (which was a challenge in that although there was law, there were no formalized courts in the earliest system). It was the Romans who systematized law and exported it to their Empire. Again, the initial rules of Roman Law were that assaults were a matter of private compensation. The significant Roman Law concept was of dominion (see Daube: 1969). The pater familias was in possession of all the family and its property (including slaves). Hence, interference with any property was enforced by the pater. The Commentaries of Gaius on the Twelve Tables treated furtum (modern theft) as a tort. Similarly, assault and violent robbery were allied with trespass as to the pater's property (so, for example, the rape of a slave would be the subject of compensation to the pater as having trespassed on his "property") and breach of such laws created a vinculum juris (an obligation of law) that could only be discharged by the payment of monetary compensation (modern damages). Similarly, in the consolidated Teutonic Laws of the Germanic tribes (see Guterman: 1990), there was a complex system of money compensations for what would now be considered the complete range of criminal offences against the person from murder down. Even though Rome abandoned England sometime around 400 AD, the Germanic mercenaries who had largely been enforcing the Roman occupation, stayed on and continued to use a mixture of Roman and Teutonic Law, with much written down by the early Anglo-Saxon Kings (see Attenborough: 1963). But, it was not until a more unified Kingdom emerged following the Norman invasion and the King was attempting to assert power over the land and its peoples, that the modern concept emerged, namely that a crime is not only an offence against the "individual", it is also a wrong against the "State" (see Kern: 1948; Blythe: 1992; and Pennington: 1993.). This is a common law idea and the earliest conception of a criminal act involved events of such major significance that the "State" had to usurp the usual functions of the civil tribunals and direct a special law or privilegium against the perpetrator. All the earliest criminal trials were wholly extraordinary and arbitrary without any settled law to apply, whereas the civil delictual law was highly developed and consistent in its operation (except where the King wanted to raise money by selling a new form of Writ). The development of the idea that it is the "State" dispensing justice in a court only emerges in parallel with or after the emergence of the concept of sovereignty. In continental Europe, Vinogradoff (1909) reports the persistence of Roman Law, but with a stronger influence from the Church (see Tierney: 1964, 1979). Coupled with the more diffuse political structure based on smaller State units, rather different legal traditions emerged, remaining more strongly rooted in Roman jurisprudence modified to meet the prevailing political climate. In Scandinavia, the effect of Roman law was not felt until the 17th century, and the courts grew out of the things, which were the assemblies of the people. The cases were decided by the people (usually largest freeholders dominating) which later gradually transformed into a system of a royal judge nominating a number of most esteemed men of the parish as his board, fulfilling the function of "the people" of yore. From the Hellenic system onwards, the policy rationale for requiring the payment of monetary compensation for wrongs committed has been to avoid feuding between clans and families (note the concept of pater familias as a unifying factor in extended kin groups, and the later practice of wergild in this context). If families' feelings could be mollified by compensation, this would help to keep the peace. On the other hand, the threat of feudal warfare was played down also by the institution of oaths. Both in archaic Greece and in medievalScandinavia, the accused was released if he could get a sufficient number of male relatives to swear him unguilty. This may be compared with the United Nations Security Council where the veto power of the permanent members ensures that the organization is not drawn into crises where it could not enforce its decisions. These means of restraining private feuds did not always work or prevented the fulfillment of justice but, in the earliest times, the "States" were not prepared to provide an independent police force. Thus, criminal law grew out of what is now tort and, in real terms, many acts and omissions that are classified as crimes overlap civil law concepts. History The consistent theoretical problem has been to justify the State's use of force to coerce compliance with its laws. One of the earliest justifications was the theory of natural law. This posits that the standards of morality are derived from or constructed by the nature of the world or of human beings. Thomas Aquinas said: "the rule and measure of human acts is the reason, which is the first principle of human acts" (Aquinas, ST I-II, Q.90, A.I), i.e. since people are by nature rational beings, it is morally appropriate that they should behave in a way that conforms to their rational nature. Thus, to be valid, any law must conform to natural law and coercing people to conform to that law is morally acceptable. William Blackstone (1979: 41) describes the thesis: "This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original." But John Austin, an early positivist, applied utilitarianism in accepting the calculating nature of human beings and the existence of an objective morality, but denied that the legal validity of a norm depends on whether its content conforms to morality, i.e. a moral code can objectively determine what people ought to do, the law can embody whatever norms the legislature decrees to achieve social utility, but every individual is free to choose what he or she will do. Similarly, Hart (1961) saw the law as an aspect of sovereignty with lawmakers able to adopt any law as a means to a moral end. Thus, the necessary and sufficient conditions for the truth of a proposition of law were simply that the law was internally logical and consistent, and that State power was being used with responsibility. Dworkin (2005) rejects Hart's theory and argues that fundamental among political rights is the right of each individual to the equal respect and concern of those who govern him. He offers a theory of compliance overlaid by a theory of deference (the citizen's duty to obey the law) and a theory of enforcement, which identifies the legitimate goals of enforcement and punishment. Legislation must conform to a theory of legitimacy, which describes the circumstances under which a particular person or group is entitled to make law, and a theory of legislative justice, which describes the law they are entitled or obliged to make. Indeed, the majority of natural law theorists accept that a primary function of the law is to enforce the prevailing morality. The problem with this view is that it makes any moral criticism of the law impossible in that, if conformity with natural law is a necessary condition for legal validity, all valid law must, by definition, be morally just. Thus, on this line of reasoning, the legal validity of a norm necessarily entails its moral justice. The solution to this problem is to admit some degree of moral relativism and to accept that norms may evolve over time and, therefore, the continued enforcement of old laws may be criticized in the light of the current norms. The law may be acceptable but the use of State power to coerce citizens to comply with that law is not morally justified. In more modern conceptions of the theory, crime is characterized as the violation of individual rights. Since rights are considered as natural, rather than man-made, what constitutes a crime is also natural, in contrast to laws, which are man-made. Adam Smith illustrates this view, saying that a smuggler would be an excellent citizen, "...had not the laws of his country made that a crime which nature never meant to be so." Natural law theory therefore distinguishes between "criminality" which is derived from human nature, and "illegality" which is derived from the interests of those in power. The two concepts are sometimes expressed with the phrases malum in se and malum prohibitum. A crime malum in se is argued to be inherently criminal; whereas a crime malum prohibitum is argued to be criminal only because the law has decreed it so. This view leads to a seeming paradox, that an act can be illegal that is no crime, while a criminal act could be perfectly legal. Many Enlightenment thinkers such as Adam Smith and the American Founding Fathers subscribed to this view to some extent, and it remains influential among so-called classical liberals and libertarians. Natural law theory Antisocial behaviour is criminalised and treated as offences against society which justifies punishment by the government. A series of distinctions are made depending on the passive subject of the crime (the victim), or on the offended interest(s), in crimes against: Or they can be distinguished depending on the related punishment with sentencingtariffs prescribed in line with the perceived seriousness of the offence with fines and noncustodial sentences for the least serious, and in some States, capital punishment for the most serious. Personality of the State.Rights of the citizen.Public administration. Administration of justice.Religious sentiment and faith.Public order. Public economy, industry, and commerce. Public morality. Person and honour.Patrimony. Reasons Crime is generally classified into categories, including violent crime, property crime, and public order crime. Crime types In the United States since 1930, Uniform Crime Reports (UCR) have been tabulated annually by the FBI from crime data submitted by law enforcement agencies across the United States. This data is compiled at the city, county, and State levels into the Uniform crime reports (UCR). Violations of laws, which are derived from common law, are classified as Part I (index) crimes in UCR data, and further categorised as violent and property crimes. Part I violent crimes include murder and criminal homicide (voluntary manslaughter), forcible rape, aggravated assault, and robbery, while Part I property crimes include burglary, arson, larceny/theft, and motor vehicle theft. All other crimes are classified as Part II crimes. Crimes are also grouped by severity, some common categorical terms being: felonies (US and previously UK), indictable offences (UK), misdemeanors (US and previously UK), and summary offences (UK). For convenience, infractions are also usually included in such lists although, in the U.S., they may not be the subject of the criminal law, but rather of the civil law. The following are crimes in many criminal jurisdictions:Arson (not in English law)AssaultsBatteryBlackmailBurglaryChild sexual abuseCounterfeitingDrug possessionEmbezzlementEspionageExtortionForgeryFraud/Deception offencesHomicideIdentity theftIllegal gamblingInchoate offensesKidnappingLarcenyLootingMotor vehicle theft/TWOCPerjuryPiracyRapeRobberySexual assaultsSmugglingStalkingTax evasionTerrorismTheftTreasonTrespass (not in English law)Vandalism (see Criminal Damage Act 1971 for the codified offence in English law)Weapon possession U.S. classification Under international law, certain acts are defined as criminal and may be persecuted by extraodinary procedures, such as The relationship between religion and crime notions is a complex one. Not only have many secular jurisdictions been influenced by the (socially accepted or from the top imposed) religious morality, while the actual corrolary in that sphere is answerable only to one's conscience and divinity, often in the aftermath), in various historical and/or present societies or institutionalized religions, systems of earthly justice have been established which punish crimes against the divine will and/or specific religious (devotional, organisational and other) rules under a specific code, such as Islamic sharia or canon law (notably within the Roman Catholic church). In the (para)military sphere, both 'regular' crimes and specific ones, such as mutiny, can be persecuted by special procedures and/or codes.Crime against humanityWar crimeHate Crimes Specific crime spheresActus reusCapital punishmentCase lawCivil lawConvictism in AustraliaCorrectionsCrime mappingCrime in the United StatesCriminal justiceCriminal recordDetectiveDrug-related crimeFear of crimeGangsGun violenceHate crimeInsanity defenseInternational crimeLaw and orderMala in seMala prohibitaMens reaOrganized CrimeOutlawPenal colonyPrisonProportionality (law)Racial profilingSex crimeSocial policyStrict liability crimesThe Yogurt Connection, drug smugglersUnderground economyVictimologyVictimless crime (political philosophy)War on drugs Statistics Aquinas, Thomas. (1988). On Law, Morality and Politics. 2nd edition. Indianapolis: Hackett Publishing Co. ISBN 0-87220-663-7 Attenborough, F. L. (ed. and trans.) (1922). The Laws of the Earliest English Kings. Cambridge: Cambridge University Press. Reprint March 2006. The Lawbook Exchange, Ltd. ISBN 1-58477-583-1 Blackstone, William. (1765-1769). Commentaries on the Law of England: A Facsimile of the First Edition of 1765-1769, Vol. 1. (1979). Chicago: The University of Chicago Press. ISBN 0-226-05538-8 Blythe, James M. (1992). Ideal Government and the Mixed Constitution in the Middle Ages. Princeton: Princeton University Press. ISBN 0-691-03167-3 Cohen, Stanley (1985). Visions of Social Control: Crime, Punishment, and Classification. Polity Press. ISBN 0745600212 Daube, David. (1969). Roman Law: Linguistic, Social and Philosophical Aspects. Edinburgh: Edinburgh University Press. ISBN 0-85224-051-1 Driver, G. R. & Mills, John C. (1952-55). The Babylonian Laws. 2 Vols. Oxford: Oxford University Press. ISBN 0-19-825110-6 Dworkin, Ronald. (2005). Taking Rights Seriously. Harvard University Press. ISBN 0-674-86711-4Foucault, Michel (1975). 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Kramer, Samuel Noah. (1971). The Sumerians: Their History, Culture, and Character. Chicago: University of Chicago. ISBN 0-226-45238-7 Maine, Henry Sumner. (1861). Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas. Reprint edition (1986). Tucson: University of Arizona Press. ISBN 0-8165-1006-7 Oppenheim, A. Leo (and Reiner, Erica as editor). (1964). Ancient Mesopotamia: Portrait of a Dead Civilization. Revised edition (September 15, 1977). Chicago: University of Chicago Press. ISBN 0-226-63187-7 Pennington, Kenneth. (1993). The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tradition. Berkeley: University of California Press. Polinsky, A. Mitchell. (1980). "Private versus Public Enforcement of Fines". The Journal of Legal Studies, Vol. IX, No. 1, (January), pp105-127. Polinsky, A. Mitchell & Shavell, Steven. (1997). "On the Disutility and Discounting of Imprisonment and the Theory of Deterrence," NBER Working Papers 6259, National Bureau of Economic Research, Inc. [1] Skaist, Aaron Jacob. (1994). The Old Babylonian Loan Contract: Its History and Geography. Ramat Gan, Israel: Bar-Ilan University Press. ISBN 965-226-161-0 Tierney, Brian. (1979). Church Law and Constitutional Thought in the Middle Ages. London: Variorum Reprints. ISBN 0-86078-036-8 Tierney, Brian. (1964). The Crisis of Church and State, 1050–1300. Reprint edition (1988). Toronto: University of Toronto Press. ISBN 0-8020-6701-8 Vinogradoff, Paul. (1909). Roman Law in Medieval Europe. Reprint edition (2004). Kessinger Publishing Co. ISBN 1-4179-4909-0